Plaintiff Donna M. Shimp is an employee in good standing of defendant New Jersey Bell Telephone Company (hereinafter "Bell") by whom she has been employed since March 13, 1961. In or about 1970 she became aware of various physical symptoms such as nasal and eye irritation, the latter being diagnosed as corneal abrasion and erosion.

Plaintiff was transferred to the Bridgeton office of defendant in February 1975. Seven of the thirteen employees there smoked heavily in the work area, and there was no adequate ventilation to remove the smoke from plaintiff's surroundings where she was required by the nature of her job to be located.

As a result of the environmental [smoker misconduct/behavior] conditions in her work place, plaintiff was forced to go on disability [sick leave] for three months. During that time she was examined by several physicians, including allergists, who diagnosed her condition as an allergic reaction precipitated by exposure to tobacco smoke. A physician in the employ of defendant Bell recommended that plaintiff return to work only in a smoke-free environment, while an [anti-rule of law] executive of defendant Bell advised her there was no smoke-free environment within the Commercial Department wherein she was employed.

Since neither company nor union would consider a change in the [unlawful employer] policy of [unlawfully] allowing [negligently hired] employees to smoke [spew toxic chemicals] in the work area, plaintiff's only alternatives were to accept a demotion and decrease in salary which would relocate her in a nonsmoking area designed to protect electronic equipment, to be fired to protect her health, or to continue working in an environment [coworker behavior/misconduct situation] that was causing marked damage to her health and to that of her fellow employees.

Plaintiff pursued her administrative remedies by filing a grievance with the union local, even though both Bell and the union had removed any restriction on smoking as a remedy within the
grievance procedure. Thereafter, she was transferred to the Millville office of defendant where there was then only one [negligently hired] smoking employee and some year-round ventilation. However, the trip to Millville
required an additional 40 minutes per day in travel time and she was given no assurance that there would be no more than one
[negligently hired]
smoking employee stationed there in the future.

The International Union President refused to present the issue of nonsmoking employees'
health protection in the workplace to the Executive Committee or to the union membership for a vote
because limitation or banning of smoking was inherent therein. He took the [irrational] position that [negligently hired]
employees have a right to smoke [spew toxic chemicals] wherever they wish and that the union would not represent plaintiff in a presentation of her original grievance to defendant.

Plaintiff appealed the union's inaction to the National Labor Relations Board and additionally
filed charges against both union and company for failing to bargain to improve an unhealthy working
condition [employee misconduct/behavior]. The regional office dismissed

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the complaint, holding that there was no violation of the National Labor Relations Act; this dismissal
was upheld on appeal to their General Counsel.

In addition to the union's lack of support for her position, plaintiff has made unsuccessful
attempts to obtain assistance from the State Department of Health, the State Department of Labor
& Industry, the Office of the Public Advocate, the local Boards of Health of Salem and Cumberland
Counties, the Environmental Protection Agency, the U. S. Public Health Service and the Occupational Safety and Health Administration of the U. S. Department of Labor. All these efforts
were to no avail.

Since plaintiff's assignment to the Millville office in July, she has continued to experience
the above described symptoms associated with her exposure to "second-hand smoke." The circulator (when running) does not remove the smoke from the room; the use of the exhaust fan is inadequate, i.e. ten minutes out of an hour; and smoking [mentally ill, negligently hired] employees are not required to stay away from plaintiff while they are smoking [i.e., displaying symptoms of the mental disorder], nor is
management proscribed from assigning her near the smoking employee. In addition, she is subject to temporary assignments in other offices where she is endangered by even higher concentrations of
tobacco smoke.

Plaintiff is not seeking monetary damages for the harm that the exposure to such conditions has done to her health. That action would be appropriately heard in the Division of Workmen's Compensation. [No, this is attempted murder.] Nor does she wish to be forced to seek other employment or to accept a demotion.

Plaintiff is seeking equitable [law enforcement] relief from this court to enable her to continue her present employment in safe surroundings by enjoying defendant from exposing her to the well-documented hazardous environmental [behavioral] conditions caused by the passive [forced] inhalation of the smoke of other employees.

It is her position that there is a basis in the [already extant] law as it now exists in New Jersey [not to mention federal] for the granting of such an [allegedly] extraordinary remedy [to order the law enforced pursuant to 4000 years of precedents as per the constant and consistent record of the 4000 year rule of law].

ARGUMENT

1. Employers in the State of New Jersey are under a duty, imposed by the Common Law of New Jersey, to provide a reasonably safe and healthful place for employees to work, which includes the provision of adequate general
ventilation.

The duty of the employer to provide a reasonably safe place to work has been constantly and consistently restated by the courts and the legislature of this State. Beginning in this century the rule was stated in

Under the contract of employment it becomes the master's duty to use reasonable care to provide a proper and safe place in which the servant may work, to furnish suitable tools and implements with which he may work, to inspect and repair the apparatus at reasonable intervals and with ordinary prudence, and to select and employ competent [e.g., sane, non-dangerous] workmen.

In Burns v. Del. & Atl. Telegraph and Telephone Co., (E. & A.), 70 N.J.L. 745 (1904)
workers stringing telephone lines were injured when one of the lines sagged and touched a "live"
trolley wire. The plaintiffs recovered and defendant appealed. The defendant asserted that it was an
error for the trial courts to refuse to charge that, "it was no portion of any duty of defendant to supply
gloves and boards or a platform under the circumstances of this case" (70 N.J.L. at 749). The court
held:

It is one of the duties of an employer to exercise reasonable care that the place in
which he sets his servant [employees] to work, and the system or method adopted by
the employer for the doing of the work, shall be reasonably safe for the servant and
free from latent dangers known to the master or discernible by an ordinarily prudent
master [employer] in the circumstances. Western Union Telegraph Co. v. McMullen,
29 Vroom 155.

That the duty of the master [employer] to exercise care with respect to the place of
working extends to the system or method of arranging the work is established in this
state. Belleville Stone Co. v. Mooney, 31 Vroom 323; 32 Id. 253.

Dealing with another aspect of the duty to provide safe working conditions, the court stated:

It is suggested that the duty of a master [an employer] with respect to care as to the tools and appliances furnished for his servant's [employee's] work is limited to such
as are in fact supplied by the master. But this has no appliancy [application] to the failure of the
present defendant to supply gloves, boards or a platform. These articles, if furnished,
would have been not tools and appliances for the work that the plaintiffs were doing
but rather safeguards against the dangers that arose out of the work. In the absence
of such dangers the plaintiffs could perform the work at which they were set just as
well without gloves, boards, or platform as with them. See Belleville Stone Co. v.
Mooney, 32 Vroom 254. It was not the exigencies of the work but the latent danger
that inhered in the work and of which the jury have found

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the plaintiffs were ignorant, that necessitated the use of gloves, boards or a platform.

2. The duty of the Employer to provide a reasonably safe place to work is necessarily subject to adjustment in light of increased knowledge of dangers and changed conceptions of social relations.

The duty of the employer is not limited to traditional or customary employer action. As
Justice Proctor said in Wallenhelder v. Rader, 49 N.J. 1, 7:

. . . Proof of an industry custom is not dispositive on the question of duty. The
standard of conduct is reasonable care, that care which a prudent man would take in
the circumstances. The customs of an industry are not conclusive on the issue of the
proper extent of care; they are at most evidential of the standard. (Citations omitted.)

Dean Prosser puts the principle as follows:

Even an entire industry by adopting such careless methods to save time, effort or
money, cannot be permitted to set its own uncontrolled standards . . . and if the only
test is to be what has been done before, no industry or group will ever have any great
incentive to make progress in the direction of safety. . . . The much better view
therefore is that of the great majority of the cases, that every custom is not conclusive
merely because it is a custom, and that it must meet the challenge of 'learned reason,'
and be given only the evidentiary weight which the situation deserves. It follows that
where common knowledge and ordinary judgment will recognize unreasonable
danger, what everyone does may be found to be negligent; and that there will be
extreme cases where it is so clearly negligent in itself that it may even be excluded
from evidence. Prosser, Torts Sec. 33, 170 (3d Ed. '64 ).

[Ed. Note: “what ought to be done is fixed by a standard . . . whether it usually is complied with or not.”—Texas & Pac Ry v Behymer, 189 US 468, 470; 23 S Ct 622, 623; 47 L Ed 903 (1903).
“Right is still right, even if nobody is doing it. And wrong is still wrong, even if everybody is doing it.”—Texas Ranger saying.

In Wytupeck v. Camden, 25 N.J. 450 (1957), the New Jersey Supreme Court articulated again the basic principles under which a duty is established by law. These are:

(3-5) "Duty is not an absolute conception; and the standard of conduct is not an
absolute. Duty arises out of a relation between the particular parties that in right
reason and essential justice enjoins the protection of the one by the other against what
the law by common consent deems an unreasonable risk of harm, such as is
reasonably forseeable, Lokar v. Church of the Sacred Heart, 24 N.J. 549, 133 A.2d
12 (1957). In the field of negligence, duty signifies conformance "to the legal
standard of reasonable conduct in

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the light of the apparent risk"; the essential question is whether "the plaintiff's
[employee] interests [e.g., safety] are entitled to legal protection against the
defendant's [employer's] conduct." Prosser on Torts (2d Ed.), section 36. Duty is
largely grounded in the natural responsibilities of social living and human relations,
such as have the recognition of reasonable men; and fulfillment is had by a
correlative standard of conduct. (6) "Duty" is not a rigid formalism according to the
standards of a simpler society, immune to the equally compelling needs of the present
order; duty must of necessity adjust to the changing social relations and exigencies
and man's relation to his fellows; and accordingly the standard of conduct is care
commensurate with the reasonably forseeable danger, such as would be reasonable
in the light of the recognizable risk, for negligence is essentially "a matter of risk *
* * that is to say of recognizable danger of injury." Prosser, Ibid, section 30.

Pursuant to the approach outlined by the court in Wytupeck v. Camden, the courts interpreting
the "reasonable man" standard have required that persons be treated as having kept abreast of
contemporary scientific knowledge which is common in the community. Restatement, Torts, 2d.

290. What Actor [Person] is Required to Know.

For the purpose of determining whether the actor [individual involved] should
recognize that his conduct involves a risk, he is required to know:

(a) the qualities and habits of human beings and animals and the qualities,
characteristics, and capacities of things and forces in so far as they are matters of
common knowledge at the time and in the community; and

(b) the common law, legislative enactments, and general customs in so far as
they are likely to affect the conduct of the other or third persons.

This section is explained in comment e. as follows:

(e) It is stated in 283 that unless the actor is a child, the standard to which he must conform to avoid being negligent is that of a reasonable man under the circumstances. In determining whether the actor's conduct is negligent, his personal inability to conform to the standard is immaterial.

[Ed. Note: Smokers may indeed have a "personal inability to conform to the standard," i.e., to the rules or laws. A smoker may indeed not be "a person of normal sensibilities," Aldridge v Saxey, 242 Oregon 238; 409 P2d 184 (1965). This is their loss, Barylski v Paul, 38 Mich App 614; 196 NW2d 868 (1972), not their nonsmoker victim's.A smoker may indeed be unable “to appreciate the wrongfulness of his conduct,” and “to conform hisconduct to the requirements of the law.”—People v Matulonis, 115 Mich App 263; 320 NW2d 238 (1982). This is a case involving physical deterioration of the brain due to typicalsmoker aspects, alcoholism and drug abuse), in the context of determining whether the person is insane within the meaning of the law for criminal responsibility purposes.
"For almost four hundred years, European and American physicians have observed the toxic effect of tobacco . . . . physicians have known for centuries that smokers were daily taking into their bodies large quantities of one of the most poisonous substances known to man," says Frank L. Wood, M.D., What You Should Know About Tobacco (Wichita, KS: The Wichita Publishing Co, 1944), p 67.

"We need look no further . . . than the Surgeon General's warning on the side of every box of cigarettes sold in this country that cigarette smoking is hazardous to health," Grusendorf v. City of Oklahoma City, 816 F.2d 539, 543 (10th Cir. 1987).

"The normal use of cigarettes is known by ordinary consumers to present grave health risks . . .'tobacco has been used for over 400 years . . . [k]nowledge that cigarette smoking is harmful to health is widespread and can be considered part of the common knowledge,'" Roysdon v.
R. J. Reynolds Tobacco Co., 849 F.2d 230, 236 (6th Cir. 1988).

He [the individual doing the wrongful act(s)] is treated as though he were a
reasonable man and, therefore, he is treated as though he knew those things which
the reasonable man at that time and place would know even though the actor is
himself excusably ignorant of them. As a reportable man, the actor isrequired to
possess such scientific knowledge as is common among laymen at the time and in the
community. Thus, he is required to know the ordinary operation of well-known
natural laws. He is required, among other

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things, to know the poisonous qualities of many drugs, chemicals, and gases and the
explosive or inflammable qualities of many chemical compounds and the intoxicating
quality of certain liquids. So too, the actor as a reasonable man is required to know
the ordinary operation of natural forces in the locality in which he lives which are
likely to be affected by his conduct. (Emphasis added.)

This obligation is specifically applicable to the relationship of employer and employee. In
Restatement of Agency, Second, Sec. 495 said as follows:

495. Knowledge Which Master [Employer] is Required to Have

A master [employer] is subject to a duty to his servants [employees] to conduct his
business in the light of knowledge which he has, and of such knowledge as to the
conditions likely to harm his servants [employees] as persons experienced in the
business and having special acquaintance with the subject matter have.

This is explained in Comment c, with respect to conditions that affect safety:

c. Scientific knowledge. The knowledge which is required of an employer includes
a knowledge of generally known scientific discoveries and inventions applicable to
conditions of safety in his business. He is required to inform himself of current
advances and of the progress in industries of the same nature as his own. He is
required not only to know of the operation of natural forces, but of the tendencies
which are shown by men under conditions similar to those which exist in his
employment. Thus, he must not only know something concerning the breaking
strength of materials which he uses, but he must also realize the effect of the work
which he requires upon the human instrumentalities who perform it. He is also under
a duty to realize the limits of knowledge of those whom he employs, so that he can
guard them against dangers which he is required to know, but of which he should
know they may be unaware.

[Ed. Note:
See, e.g., McAfee v Travis Gas Corp, 137 Tex 314; 153 SW2d 442 (4 June 1941), wherein an employee smoked around gas pipe, which was leaking, resultant explosion caused injury to another person. The employer was held liable for knowing the smoker's addictive propensity of which the victim, a nonsmoker coworker, was unaware.

What constitutes a reasonably safe and healthful place to work will, of course, be subject to
change in basic attitudes and the results of scientific inquiry into the various kinds of matters to
which workers are exposed, which in turn may change from decade to decade, or generation to
generation. Part 6 of this memorandum will summarize the present evidence of dangers to employees
and others from passive inhalation of tobacco smoke.

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3. The Courts of New Jersey have jurisdiction to enforce the Common Law and statutory duty of the employer to provide a reasonably safe and healthful place for employees to work by the grant of equitable relief.

While no case raising this point has been decided to our knowledge in the State of New
Jersey, it is clear that the courts of New Jerse are open to protect basic employee rights by injunction.

While these cases all dealt with the rights of workers under Article 1, paragraph 19 of the
Constitution 1947 which guarantees certain rights in connection with collective bargaining activities,
the underlining principle established in these cases is that the court of equity is available to deal with
labor relations matters unless those matters have been specifically withdrawn from the courts by
legislation. (See Milkdrivers, pages 181-183, Christ Hospital pages 544-545, and most particularly
Cooper, pages 198-200, discussing the power of the Superior Court to order reinstatement of
employees wrongfully discharged because of union activities.

(7) . . . If the trial court finds the individual plaintiffs' constitutional rights have been
infringed upon, it can exercise its vast equitable powers and grant the relief which the
circumstances dictate. As was stated in Westinghouse Electric Corp. v. United
Electrical, Radio and Machine Workers of America, Local No. 410, 139 NJ. Eq. 97,
108 (E. & A. 1946):

"A wrong suffered without a remedy is a blot upon the sound administration of
justice. In the dissenting words of Cardozo, C.J., in Graf et al v. Hope Building
Corp., 254 N.Y. 1; 171 N.E. SS4, SSS, 70 A.L.R. 984, * * * Let the hardship be
strong enough and equity will find a way, though many a formula of inaction may
seem to her the path. Griswold v. Hazard, 141 U.S. 260, 254, 11 S. Ct. 972, 999; 35
L. Ed. 678. Cf. Fifth Avenue Bank (of New York) v. Compson, 113 N.J. Eq. 152, 153;
166 A. S6. This is justice in action. This is giving meaning to the proper exercise of
the jurisdiction of the Court of Chancery."

"Equitable remedies are distinguished for their flexibility, their unlimited variety,
their adaptability to circumstances, and the natural rules which govern their use.
There is in fact no limit to their variety and application; the court of equity has the
power of devising its remedy and shaping it so as to fit the changing circumstances
of every case and the complex relations of all the parties." Pomeroy's Equity
Jurisprudence, sec. 109

A lack of precedent, or mere novelty in incident, is no obstacle to the award of
equitable relief, if the case presented is referable to an established head [body,
number] of equity jurisprudence [precedents]--either of primary right or of remedy
merely.

The plaintiffs seek the specific relief of reinstatement with back pay for the
discharged employees and reinstatement for the striking employees. They would have
this court issue a mandate requiring the trial court to so order if it finds the facts to
be as alleged by the plaintiffs. However, before this court or any court possessing
equitable powers ordains a particular type of relief, it should have the full facts before
it. This case has reached us with the barest of records. No evidence of any kind was
introduced in the trial court. As we noted above, the court has the broadest equitable
power to grant the appropriate relief. The court can and should mold the relief to fit
the circumstances, but it can hardly do so without knowing just what the
circumstances are. 'Generalizations are treacherous in the application of large
constitutional concepts.' Hughes v. Superior Court of State of California, supra, 339
U.S., at p. 469, 70 S. Ct, at p. 723, 94 L. Ed., at p. 994.

When all of the facts are developed and equitable principles and defenses are
considered, it may well be that the relief sought by the plaintiffs will be appropriate
under the circumstances. When the United States Supreme Court was concemed with
a violation of employees' rights to organize and bargain collectively as granted by the
Railway Labor Act of 1926, it said that reinstatement with back pay could be a proper
remedy for unlawful discharges in contravention of those rights. Texas and New
Orleans Railroad Co. v.Brotherhood of Railway & Steamship Clerks, 281 U.S. 548,
50 S. Ct. 427, 74 L. Ed. 1034 (1930). Reinstatement is the conventional correction
for discriminatory discharges. Phelps Dodge Corp. v. National Labor Relations
Board, 313 U.S. 177, 187, 61 S. Ct. S45, 85 L. Ed. 1271, 1279 (1941). In answering
a contention that only a statute and an administrative agency can properly deal with
labor-management relations, Chief Justice Weintraub, speaking for this court, in
Independent Dairy Workers Union of Hightstown v.

"It should not be assumed that it is beyond the capacity of the judiciary to remedy the
wrongs which appellants claimed. For the discharge of employees in violation of
their right under Article 1, paragraph 19 of the Constitution, an action for damages
may well lie, and as well a suit to reinstate with back pay and to forbid discharge
because of union activity. * * * (Citing cases.) Such enforcement of the constitutional
guaranty would give to employees the assurance they need to permit them to pursue
their own self-interest. * * *"

The above principles apply to the present case. Reinstatement with back pay may
well lie. Of course, this also means that reinstatement with partial back pay or
reinstatement without back pay or no reinstatement at all may be the proper result in
this case. After the facts have been fully developed, equity has the power to tailor the
remedy to insure a just result. See Crane v. Bielski, 15 N.J. 342, 346 (1954).

While the principle of the right to organize and engage in certain union activities is embedded
in our Constitution, certainly the common law principle that the employee is entitled to a reasonably
safe place to work, is entitled to the same judicial protection as the right to organize and bargain. The
fact that it is of more ancient lineage should not deprive it of the protection of the court system in
modem times.

Another case which reflects the willingness of the New Jersey courts to recognize newly
emerging and newly recognized legal interests and to protect those interests by injunctions is Gray
v. Serruto Builders Inc., 110 N.J. Super. 297 (Chancery 1970). In that case Judge Herbert issued an
injunction and awarded damages for mental suffering to a black person who was deprived of an
opportunity to rent an apartment because of his race. The court reviewed precedents from other
jurisdictions and concluded that it could issue an injunction under the New Jersey statutes and
constitutional provisions dealing with civil rights.

Of particular interest in that case is the fact that the legislature, according to the court, had
not intended to make the administrative remedies exclusive. The court reviewed the language and
interpretation of N.J.S.A. 10:527 which provicicd that the administrative procedure created by the
civil rights law "shall, while pending, be exclusive; and the final determination therein shall exclude
any other action, civil or criminal, based on the same grievance of the individual concerned." The
court concluded, following Jackson v. Concord Company, 54 N.J. 113 [253 A2d 793] (1969) that
provision was no bar to a direct action by an aggrieved

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person for injunctive relief where the aggrieved person did not seek in any way to use the
administrative procedure established under the New Jersey law.

4. Equity Courts have afforded protection from dangerous andseriously annoying smoke conditions for more than a century.

The willingness of the Court of Equity of New Jersey to protect health, safety and comfort of persons who are rightfully entitled to be in a place which is being exposed or which may be exposed to smoke which is uncomfortable to them, was established in the early case of Ross v. Butler, 19 N.J. Eq. 294 [97 Am Dec 654] (1868) containing a discussion of the principles under which the Court of Equity would enjoin a nuisance on adjoining land. See Annotation: Nuisance Resulting from smoke alone as subject for injunctive relief, 6 ALR 1574. In that case, the threatened nuisance consisted of the burning of pine wood which would create clouds of smoke. A hundred years ago, the dangers and inconveniences from such smoke were apparent to the chancellor [judge]. He held that the adjoining land owner had the right to be free of such dangers and inconveniences. Today, as Part 6 of our memorandum will indicate, the dangers of second hand and "side stream smoke" are as clear as the
dense clouds of pine smoke a century ago, and the need for equitable relief is as great.

5. The authority of Chancery Courts in New Jersey to enforce the duty to provide a reasonably safe and healthful work place has not been affected by the Workmen's Compensation Act.

Under NJSA 34:15-7 and NJSA 34:15-8, the workmen's compensation system when agreed
to by the parties as provided in the statute

"shall be a surrender by the parties thereto of their rights to any other method, form,
or amount of compensation or determination thereof than is provided in this article
and in acceptance of all the provisions of this article, and shall bind the employee
himself, and for compensation for his death shall bind his personal representatives,
his widow and next of kin, as well as the employer, and those conducting his
business during bankruptcy or insolvency." (emphasis added)

Of course, NJSA 34:15-9 contains the presumption of acceptance of the foregoing provision
in contracts of employment made after 1911.

Thus it is clear that the New Jersey legislature has made the workmen's compensation system
the exclusive method of securing money recoveries for work-connected injuries [as distinct from
personal violence by coworkers aided and abetted by management]. The statutes are silent with
respect to the question of injunctive relief against occupational hazards [or, more appropriately,
against personal violence by coworkers aided and abetted by management].

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There is no provision in the Workmen's Compensation Act making that act the exclusive
method of protecting the worker against the occupational hazard. It only makes the Act exclusive
where the worker seeks damages for an occupational hazard which has ripened into injury to him.

6. Serious health hazards, both to the plaintiff, and to all persons with [being caused to develop] respiratory or cardiac conditions, exist from the inhalation of "side stream" or "second-hand" tobacco smoke.

A. Hazards to the Plaintiff

Plaintiff's affidavit and the affidavit of Richard F. Brams, M. D. make it abundantly clear that she [Donna Shimp] suffers severe eye and nasal irritation which both interferes with her ability to work and to carry on the normal pursuits of life when exposed to "second-hand smoke." The
medical advice given by Dr. Brams is that, to protect her health, she must live and function in a relatively "smoke free" atmosphere [behavior/conduct setting]. There is no question but that the
passive [forced] inhalation of tobacco smoke is the actual cause of these irritating conditions. The doctor's affidavit establishes this fact, and the objective circumstances that these irritating
conditions cease when she is not exposed to "second-hand smoke" make it evident that this smoke is the cause of her injury (plaintiff's affidavit, paragraphs 19 and 22).

B. Hazard to Other Employees

Recent [as well as centuries of] scientific data establish that passive [forced] inhalation of tobacco smoke is in fact dangerous to three classes of people:

(a) people who have "allergic reactions" to the smoke such as the plaintiff,

(b) people who have annoying and irritating reactions, and

(c) all other persons in the population who have [been caused to develop] heart and/or lung diseases.

In 1972, when the Surgeon General issued his report on "The Health Consequences of Smoking," the subject of the passive [forced] smoker was treated at the end of the report as follows in Chapter 8. The conclusion of the Surgeon General was as follows:

SUMMARY

1. An atmosphere contaminated with tobacco smoke can contribute to the discomfort of many individuals.

2. The level of carbon monoxide attained in experiments using rooms filled with tobacco smoke has been shown to equal, and at times to exceed, the [then too permissive] legal limits for maximum air pollution permitted for ambient air quality in several localities and can also ex-

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ceed the occupational Threshold Limit Value [legal limit] for a normal work period presently in effect for the United States as a whole. The presence of such levels indicates that the effect of exposure to carbon monoxide may on occasion, depending upon the length of exposure, be sufficient to be harmful to the health of an exposed person. This would be particularly significant for people who are already suffering from chronic bronchopulmonary disease and coronary heart disease.

3. Other components of tobacco smoke, such as particulate matter and the oxides of nitrogen, have been shown in various concentrations to adversely affect animal pulmonary and cardiac structure and function. The extent of the contributions of these substances to illness in humans exposed to the concentrations present in an atmosphere contaminated with tobacco smoke is [allegedly] not presently [1972] known.

By 1975 our knowledge of the effects of passive [forced] smoking had expanded
considerably. The 1975 report on The Health Consequences of Smoking from the Department of Health, Education and Welfare, Public Health Service, contains a review of the research conducted in the preceding period, in Chapter 4, entitled Involuntary Smoking (pp 92-93; 107-108).

The studies of the "Pathologic Effects of Exposure to Cigarette Smoke" occupy pp. 102-109 of the report. Page 107 of the report indicates the proportion [percentage] of the population as to whom the public health services had indicated the inhalation of "second-hand smoke" is dangerous. The study points out that "a substantial proportion [percentage] of the U.S. population suffers from chronic cardiovascular and pulmonary diseases, however, and they represent the segment of the
population most seriously jeopardized by the conditions found in involuntary [forced] smoking
situations." In addition, the report points out that "Persons with chronic bronchitis and emphysema have considerable excess mortality under conditions of severe air pollution."

Statistics from other government publications enable us to form a clear idea of the proportion [percentage] of the working population involved.

389,000 persons between 17 and 65 suffer from emphysema, id., at p. 16.

9,190,000 persons are in the category which the Public Health Service has indicated are "seriously jeopardized" by inhalation of second-hand smoke. The total labor force from 17-65 amounts to 89.3 million (statistical abstract of the United States, 1975, p. 344). Thus more than 10% of the working age population is "seriously jeopardized" by the type of smoking conditions [misbehavior/conduct] permitted by the defendant. This smoke is produced by less than 40% of the white collar labor force. The statistical abstract of the United States, 1975, p. 90 reveals that 45,771,000 men and women between 17-65 are smokers [toxic emissions spewers]. But only 37% of white collar workers smoke. U.S. Dept. of Health, Education and Welfare, Public Health Service, Adult Use of Tobacco, 1970 p. 9, (1973). In plaintiff's affidavit (paragraph 101), she states that only 31% of the Commercial Department employees within the
Vineland District smoke.

The impact of allergic diseases on the nation's health has been recognized by the U.S. Department of Health, Education and Welfare, Public Health Service, National Institutes of Health, who in DHEW Publication No. (NIH)72-281 state the findings of the National Institute of Allergy and Infectious Disease that 15 out of every 100 Americans suffer from one or more significant allergies (figures based on a 1967 Health Interview Survey and stated to be conservative estimates). Hay fever, asthma, and other respiratory allergies comprise approximately 70% of these allergic conditions and, as stated by the affiant allergists, these conditions are usually exacerbated by tobacco smoke.

These statistics clearly indicate that the enjoyment of [mental disorder by] some [negligently hired] employees in smoking [spewing toxic substances], which is dangerous to their health, is carried out at the expense of serious injury to the health of a substantial proportion [percentage] of employees. These factors are properly taken into account by the court in determining the balance of conveniences and the social utility of the "hands off rule" of the defendant. We believe these figures should lead the court to conclude that it is improper for the defendant employer to permit some of his [negligently hired] employees to inflict such harm [violence by poisons] on others.

CONCLUSION

On the basis of the foregoing facts and argument, the plaintiff respectfully requests that this court enter an order to show cause with temporary restraints enjoining defendant from exposing plaintiff to an atmosphere in which the passive [forced] inhalation of the smoke of other [negligently hired] employees in the work place creates a hazard to her [everyone's] health.